Prior to the promulgation of the Indian Penal Code of 1860, abortion wasn't illegal. However, speaking generally, nobody was prosecuted for it either before or after 1862 unless the woman undergoing the procedure died. This was contrary to the British law of 1862 where a preparatory offense of proucuring abortifacient material with intent was created. In India, on the other hand, if the abortifacient had been administered in good faith and there was no compulsion or flagrant negligence, nobody was sent to jail. However, where death had occurred, it was important for the community concerned to hold an inquiry, clarify that the thing was not malicious, and thus show that their people were respectable and could manage their own affairs.
Ranajit Guha wrote a foolish essay- 'Chandra's death'- about a woman who died after taking abortifacient medication. She'd had an affair with an in-law who, however, didn't want to continue the relationship. He gave some utensils or paid some money to procure an abortion and the affair was managed by Chandra's family. The recorded testimony shows
1) Bagdi community was respectable and had strong family ties. It managed its own affairs. The authorities only became involved because a person had died. The proceedings were more in the nature of an inquest than any sort of prosecution. Customary law, not anything cooked up by the elite, was what mattered. Clearly, India was very different from Victorian England or the France of Louis Phillipe. Indeed, the document was preserved for its 'sociological interest' as reflecting the customs of a particular agricultural caste. From the legal point of view what was important is that it showed that abortion procured in good faith was not illegal prior to 1862 and thus it is no surprise that Courts only punished abortion where it had led to the death of the woman concerned and there was some malicious or negligent or coercive act.
2) The preparation of the abortifacient was done properly. However, post abortion trauma was not skillfully managed because the sister of the woman concerned lacked medical training.
3) The Bagdis had a more humane and less hypocritical code than the so called upper castes who practiced purdah.
4) Conversion to a particular Vaishnav sect (taking 'bhek'- i.e. wearing the customary garb of a Hindu sect), though sometimes requiring some small payment, could nullify the effect of any traditional social sanction. In particular, the child born of a union (e.g. between in-laws) considered illicit by the endogamous community one was born into, would suffer no stigma provided one had converted to another sect and joined that community. In this way, each community could maintain its reputation without having to harm members who fell in love and committed adultery.
I may mention that Ranajit- being a Kayastha- praised Ramram Basu an early nineteenth century Bengali historian who belonged to the same caste, even though he must have known that Basu procured abortions for his girl friends. The thing was disreputable, somewhat repugnant, but not illegal. We may well feel similarly today.
Turning to what Guha has written about the record of the case, what do we discover about the author?
The answer is that though himself the son of a lawyer, he finds it strange that a record of a legal inquiry traces the sequence of events backward from the death in question. Yet, how else can it proceed? The thing isn't a novel. First comes the testimony of those most directly concerned (this would be the 'panchnama'). Then comes testimony from others either confirming or refuting that testimony.
'... the narrative in the document violates the actual sequence of what happened in order to conform to the logic of a legal intervention that made the death into a murder, a caring sister into a murderess, all the actants in this tragedy into defendants, and what they said in a state of grief into ekrars. (item of evidence)
This is pure bombast. What is happening is merely an inquest. Its purpose is to defeat gossip or idle talk. There is no property dispute, or quarrel between family members, or malicious act of witchcraft. A young widow had an affair with an in-law who, sadly, didn't want to run away with her. True, the lady could convert to a Vaishnav sect and keep the child, but then she would belong to a different 'samaj' (community). The easier course was to have an abortion- which wasn't a bid deal back then even if the missionaries thought it was a terrible sin.
The reasons the 'actants' in this tragedy gave testimony was because it cleared them of any suspicion of malice or hatred. It helped, it did not harm, their grieving process. People would have told them 'you did your best for her. Don't blame yourself. You will meet again in a future, and better, life.'
What Guha has done is turn a humane type of inquest into a grand guignol homage to Foucault's 'I Pierre Riviere'. But the Riviere case was completely different. An overly religious young man, who hated his mother for mistreating his father, went to her house and killed her and her children. Was he mentally ill- he claimed he'd feigned madness for a strategic reason- or should he be executed? That was the question in the case. The 20 year old said he killed his mother 'because God commanded me to justify His providence' by which he meant that his mother had not behaved to her husband as God intended.
Guha has 'constructed a matrix' of stupid shit so as to prove himself the equal of Foucault. But Foucault was genuinely mad. Guha was merely imitating the French nutter.
Constructed thus, a matrix of real historical experience was transformed into a matrix of abstract legality,
No it wasn't. A woman had died because of bad luck. Nobody had done anything wrong. The matter had been looked into and the community was satisfied that there was no murderer or black magician lurking in their midst.
so that the will of the state could be made to penetrate, reorganize part by part, and eventually control the will of a subject population
but the 'will of the State' (the East India Company) was solely directed at making a profit and sending it back to England. They believed, rightly or wrongly, that the best way to do this was to let the people of the country continue to manage their own affairs in their accustomed manner. One consequence was that different communities formed their own 'Samaj Associations' to show they were self-regulating and of respectable character.
in much the same way as Providence is brought to impose itself upon mere human destiny.'
Guha mentions Providence because the lunatic Pierre had mentioned it. But Hindu India considers Providence to arise by reason of the operations of Lord Vishnu. In this case, the lady could have kept her baby and lived respectably by joining a particular Vaishnav sect. But, having a abortion involved no stigma. Sadly, these procedures can be dangerous. In practice, what this meant was that Indian law would come to have stronger Doctor patient confidentiality so that women who needed abortions- generally pictured as either Hindu widows or the wives of officials who had got pregnant while the husband was 'out of station'- could get access to medical treatment if, as in the case of Chandra, the use of an over the counter abortifacient had medical consequences. This was humane and pragmatic. It was unlike what was happening in European countries till quite recently or, indeed, what is happening now in some parts of America after the Supreme Court reversed Roe v Wade.
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